The Emporia weekly news. [volume] (Emporia, Kan.) 1881-1889, 1887-08-18

the loan companies was shown to have
Deen carried on settled business.
where these eXhorbitant and ex-
trayagant rates, and in addition
to regular interests were charged, he
was presumed to understand the ma
ture of the contract the loan COM
panleS were making, and that in the
absence of satisfactory proof to rebut
1 this presumption he could recover only
| the amount received by the borrower
and the legal interest and not the COM
missions, which are included in the
| amount stated in the rate or mort
gage.
ORDER REVOKED.
| WASHINGTON, Aug. 15.-The Secre-
tary of Interior to-day revoked the or.
der of withdrawal of indemnity lands
| for the benefit the Atlantic Il Poetic
| Railroad Company, and in long liter
to the commissioner of the General
Land Office directed that they
may be restored to settlement under
the presumption and homestead laws
| 1t is stated that between $25 200, 900
and $50, 000, 900 are involved in this de-
| cision in the case of the Atlantic s. Pa
cific Company. The order also applies
to all of the other railroads named in
the Secretary s rules of May % last,
except the st. Paul, Minneapolis &
Manitoba, the Hastings u Dakota,
the st. Paul 81 Pacific, the st. Paul &
Sioux City, the Sioux City & st. Paul,
| and the Wenona Il st. Peter. These
are still under consideration and unde-
clded.
Secretary Lamar says in his letter to
the Commissioner of the Land Office.
l have considered the showing made by
the Atlantic Il Pacific Railroad Com
pany in response to the order of May
%, 1887, to show cause why the with
drawal of the lands within its indem-
nifty limit should not be revoked, and
said lands thrown open to settlement.
The answer of the company covers
only that portion of said railroad west
of the State of Missouri, it being as
serted that the portion constructed
within said state has by foreclosure
sale passed into other hands. 1t
is not to be denied that the act
of July %, 1886, Incorporating the At
lantic & Pacific Railway and granting
to it certain lands, is both legislative
grant and contract. This being so,
and said contract being now set up by
the company as bar to the right of
the Executive to revoke existing in
deminity Withdrawals, it is proper to
examine said act and see exactly what
the contract was. The Secretary re-
views the section of the act granting
the lands, and adds: Now here was a
grant to the free, alternate odd number
ed sections to be found within twenty
miles on each side of the road in the
states and within forty miles in the
territories. with the right to take the
free old numbered sections found with
in further limit of ten miles as in
demnity for lands lost in the granted
limits. The order was for the survey
of the lands, ''for forty miles in
width, - or with only to the extent of
the granted limits in the territories,
and ten miles beyond the granted and
indemnity limits in the states. While
surveys were to be made to this
extent the withdrawal of lands
latter the general route shall be
or presumption before or after survey
only related to the odd sections hereby |
granted" This plain statement shows
that the contract of the Government
was to give the stated quantity of land
if it could be found free within the
granted limits; and for the purpose of
securing as far as possible the full
fruition of the grant to the Company.
The act, creating alike the grant and
contract, made a Legislative withdrawal
of the lands within the granted limits |
as soon as they should be indicated by
the map of a general route. AS to the
lands within the indemnity the
contract was based upon two
contingencies-that of losing lands
within the granted limits and
being able to find sufficient to in
demnify among the odd numbered sec
ton within a further limit than ten
miles. Here the interest of the company
was so remote and contingent, being a
mere potentially and not grant, that
Congress declined to order a NTH
draWal for the benefit of the same, or
even a survey within the territories. 1t
is apparent from the granting clause of
said act that the grant was not one of
quantity but for a certain number of
sections in place, and if not
there, it gave the privilege of looking
for the deficiency in restricted limits.
Had Congress intended the company
should absolutely have the full guam
tity of land designated it would not
have restricted the right to select the
odd sections within ten miles, but
would have placed no lateral limit
upon the right of selection, as in the
case of the Burlington s. Missouri
River Railroad, broken there. There
fore the company does not get the
amount of the sections within primary
limits and fails to make up its losses
in these Sundry limits There is no
violation of the contract anywhere that
l can see, but only the happening big
house of contingency plainly cOntem-
plated by the granting act, subject to
which the company made its contract.
1t is manifest that the act gives no
special authority or direction to the
Executive to withdraw said lands. and
when such withdrawal was made it
was done by virtue of the general au-
thority over such matters possessed by
the Secretary of the Interior and the
exercise of his discretion. So that
were the withdrawal to be
revoked no laws would be
violated, no contract broken. The
company would be placed exactly in
the position which the law gave it and
deprived of no rights acquired there
under. 1t would yet have its right to
select in indemnity for lost lands, but
in so doing it would have no advantage
over the settler as it now has, in con-
travention of the policy of the
Government in detail of the
right unquestionably conferred upon
settlers by the land laws of the
country, and apparently specially pro-
tected by the provisions of the grant
ing act under consideration. The Sec
-etary proceeds to answer some of the
points made by the Company, which
require the Government to select other
granted lands as indemnity, and says:
"When this grant was made to the
Atlantic & Pacific Railroad Company
| it is true the act directed the survey of
the granted limits in the territories
and ten miles beyond indemnity limits
in the states, but the grantees well
know that such survey could
only be commenced and Completed
when a proper appropriation was
made by Congress and subject to
the convenience OF Congress, and un.
| der the contingency of that appropria-
ton the grant was accepted. The
right to order such surveys is entirely
beyond the power of the Executive
| who can only administer the laws as
enacted, and who can only expend as
| directed, such money as has been duly
| appropriated, having no authority tl
draw such moneys from any Other
source. The attention of Congress has
been repeatedly called to the subject o.
these surveys, but in the exercise of ii
wisdom it has thought proper not *
make such appropriations as were sug
gested, and the matter remains exactly
where it was when the grant was made